Office of the Attorney General
State of Texas

Re: Whether the tape of an interview is excepted from
disclosure under the Open Records Act

Dear Mr. Ashworth:

A member of the board of trustees of the Alamo Community
College District has asked the chancellor of the district to
furnish him with the following information:

1. Annual letter from the college's general counsel to the
college's auditing firm concerning possible liability in pending
actions against the college.

2. Transcripts from the business management/restaurant
management audit investigation regarding alleged wrong doing by
the program director.

The trustee requested this information in his official capacities
as trustee and as chairman of the board's audit committee. We
understand that the chancellor granted the first request but
denied the second, relying upon sections 3(a)(2), 3(a)(3), and
3(a)(11) of the Open Records Act, article 6252- 17a, V.T.C.S.
The question in this instance is whether the chancellor must
grant the trustee's request. We answer in the affirmative.

Essentially, the chancellor argues that, as custodian of public
records for the Alamo Community College District, see V.T.C.S.
art. 6252-17a, s 5(a), he may decline to furnish to any
requestor, including a district trustee, records maintained by
the community college district when he concludes that those
records are within an exception in the Open Records Act. We
disagree. This argument erroneously assumes that a trustee's
right of access to information maintained by the district is
limited to that of a member of the general public.

Section 3(a) of the Open Records Act provides that "[a]ll
information ... maintained by governmental bodies ... is
public information ...." (Emphasis added). Section 2(1)(A) of
the Act defines "governmental body" as, inter alia, "any board
... within the executive or legislative branch of the state
government ... under the direction of one or more elected or
appointed members." (Emphasis added). Section 5(a) provides
that "[t]he chief administrative officer of the governmental body
shall be the custodian of public records, [who] shall be
responsible for the preservation and care of the public records
of the governmental body." (Emphasis added). "Custodian" is
defined in Webster's New Collegiate Dictionary as "one that
guards and protects or maintains" and "one entrusted with
guarding and keeping property or records ...." Webster's New
Collegiate Dictionary (1981), at 278.

The foregoing provisions establish that, although the custodian
of public records for the Alamo Community College District is
responsible for guarding, preserving, and caring for the
district's records, these records are not within his exclusive
possession and control. On the contrary, since the Act talks, in
section 3(a), in terms of "information collected, assembled, or
maintained by governmental bodies" (emphasis added), these
records must be deemed to be at least constructively in the
possession and control of the board of trustees of the district.
When he discharges his duty to preserve and guard these records,
the custodian merely acts as an agent of the board who is, in
effect, charged with the duty of preserving and guarding
"information ... maintained by [the board]." Sec. 3(a).
Furthermore, the determination of confidentiality is made by the
"governmental body." Sec. 7(a).

The purpose of the Open Records Act is to prescribe the
conditions under which members of the general public can obtain
information from a governmental body. See V.T.C.S. art. 6252-17a,
s 3(a) (information maintained by governmental bodies is
"public" information and, with certain exceptions, is available
to the "public" during normal business hours). For the reasons
discussed, we conclude that when a trustee of a community college
district, acting in his official capacity, requests information
maintained by the district, he is not a member of the "public"
for purposes of the Open Records Act. On the contrary, he is a
member of the board which at least constructively maintains all
records in the district's possession and is charged with the duty
of implementing the Act.

Because such a trustee is not merely a member of the public,
his request for records in the district's possession cannot, in
our opinion, be treated as a request for information under the
Open Records Act. In this context, we note that in this
instance, the trustee did not request these records under the
Act. Concomitantly, the custodian of district records may not
invoke the Act to prevent the trustee from obtaining the
requested records. As noted, the Act controls the availability
of information to members of the general public as such. It
cannot, in our view, control the right of access of a member of a
governmental body to information in that governmental body's
possession. Since the governmental body--in this instance, the
board of trustees of the district--at least constructively
maintains records in the district's possession, we believe it
logically follows that a member of that board has an inherent
right of access to such records, at least when he requests them
in his official capacity.

The opposite conclusion would produce absurd results. First,
as we have noted, the Open Records Act entitles members of the
public to information maintained by governmental bodies, unless
it is within a section 3(a) exception. It would be ludicrous to
conclude that a member of a board which "maintains" information
cannot obtain that information. Second, the board of trustees of
the Alamo Community College District is responsible for the
governance and control of the district. Educ.Code s 130.082.
See Educ.Code s 130.005 (laws pertaining to junior colleges
applicable to community college districts). Were we to conclude
that the custodian of the district's records may invoke the Act's
exceptions to prevent a district trustee from obtaining those
records, we would create an anomalous situation in which a
district employee could prevent such trustee from discharging his
official duties. Without complete access to district records,
such trustee could not effectively perform his duties. We do not
believe that those who drafted the Open Records Act intended to
allow an employee of a governmental body to invoke the Act to
keep a member of that body from obtaining information in the
governmental body's possession.

You also ask whether the foregoing information and other
information must be made available to a reporter from a local
television station. Specifically, the reporter has asked for "the
complete financial transactions of the restaurant management
program's agency account(s) for the school years 1980-1981,
1981-1982, and 1982-1983." You contend that the requested information
is within section 3(a)(3) of the Open Records Act, which excepts
the following from required disclosure:

information relating to litigation of a criminal or civil
nature and settlement negotiations, to which the state or
political subdivision is, or may be, a party, or to which an
officer or employee of the state or political subdivision, as a
consequence of his office or employment, is or may be a party,
that the attorney general or the respective attorneys of the
various political subdivisions has determined should be withheld
from public inspection.

You advise that all of the requested information has been
subpoenaed by the Bexar County District Attorney's Office for use
in an investigation. You have provided us with a copy of a
subpoena duces tecum which commanded the district's internal
auditor to appear before the grand jury and bring with him the
foregoing records.

This office has consistently held that section 3(a)(3) may be
invoked where litigation is either pending or reasonably
anticipated. See, e.g., Open Records Decision No. 331 (1982).
We believe that when a matter is under investigation by the
district attorney's office, we may reasonably conclude that that
matter may result in litigation. The evidence that you have
provided convinces us that in this instance, litigation is "more
than mere conjecture." Open Records Decision No. 328 (1982). We
therefore conclude that section 3(a)(3) authorizes you to deny
this reporter's request.